Railways Ice Co. v. Howell

• Decision Date: 22 February 1915
• Docket Number: 204
• Parties: THE RAILWAYS ICE COMPANY v. HOWELL.
• Court: Arkansas Supreme Court

174 S.W. 241

117 Ark. 198

THE RAILWAYS ICE COMPANY v. HOWELL.

No. 204

Supreme Court of Arkansas

February 22, 1915

Appeal from Crittenden Circuit Court; W. J. Driver, Judge; modified and affirmed.

STATEMENT BY THE COURT.

This is an action brought by Verney V. Howell, as a widow, in behalf of herself and the next of kin of W. M. Howell, against appellant to recover damages for the death of her husband which occurred on the 11th day of December, 1911. The facts as shown by the appellant, so far as necessary to determine the issue raised by the appeal, are substantially as follows:

T Howell testified: My brother, W. M. Howell, was killed by falling from a platform twenty-six feet high while engaged in the work of tearing down and dismantling an ice plant belonging to the appellant. The ice plant was situated right on the right-of-way of the railway company at the town of Marion, in Crittenden County, Arkansas, and had formerly belonged to the Frisco Ice Company, of which corporation I was a member. That corporation had sold the plant to the appellant, the Railways Ice Company, and that company desiring to erect a larger plant employed my brother, myself and others to engage in the work of dismantling it and tearing it down.

I. E Freeman was in general charge of the work for appellant and designated me as foreman. On the morning the injury occurred we were engaged in taking down the condensers. As foreman I told my brother to tear down all the pipes in that building. The building was twenty-six feet high, and after taking down some of the pipes in the rear part of the building, he went up to the top platform to take down the pipes there. The platform was about two feet wide and there was a banister around it of planks two inches thick by three inches wide. These two-by-fours were nailed down on upright posts of the same dimensions and had been placed there to keep anyone from falling while at work on the platform. My brother had not been at work there more than twenty minutes before he fell from the platform and was injured so severely that he died twelve hours thereafter.

The railing which gave way and caused him to fall from the platform was made of green gum timber and had been there about a year. There was an old crack in the timber and it ran angling from one end of it a distance of about three feet. I knew the crack was there and had known it for some time but did not think to tell my brother about it when I told him to go up there and take down the pipes. Before the corporation of which I was a member sold the plant to the appellant I had been day engineer, and my duties required me to go up to the top of the tower frequently to inspect the condenser pipes and in that way I learned that the railing had a crack in it.

My brother worked for the old company before it sold out to the appellant, but he worked at night and did not have occasion to go up to the top platform where he was injured.

Pink McMillan, the only eye witness to the injury, testified: I was helping Mr. Howell take the pipes down the day he was killed. He had been working down in the engine room, but in the afternoon we went up to the top of the tower to take down some condenser pipe. We had taken down a pipe and had commenced to shove it off the banister. I placed one end on the banister and was letting it down and Mr. Howell was pushing the pipe from him and in doing so he either stepped to the banister or leaned against it, I don't know exactly which, and it gave way and broke. This caused him to fall to the ground. I afterward examined the railing where it broke and found an old seasoned sun-crack in it, beginning at the end and angling crossways about two feet or maybe three feet. I didn't notice the crack in it when I went up there to work. When Mr. Howell fell the banister broke and the middle post was partly torn loose from the platform. I noticed it hanging there afterward by some nails. After Mr Howell was taken away I continued working up there until the pipes were all down and the tower dismantled.

Other evidence for the plaintiff tended to show that Howell was twenty-six years of age, that he was in good health at the time he received his injuries, and that his life expectancy was thirty-eight years. He had a wife and three small children, and was making $ 75 per month at the time of his death. He had been engaged in farming and was also a good engineer, and had worked at that occupation for some time before he was killed. I. E. Freeman, for the appellant testified:

I have been in the employment of the Railways Ice Company for about two years. At the time of the accident to Mr. Howell I was at the plant and was local manager and foreman. I had the employment of the hands and directed their work. I did not see the accident. I never appointed or authorized T. Howell to act as foreman. He did not have any authority whatever to direct his brother about the work.

Other evidence for the defendant tended to show that Freeman had full charge of the work of tearing down the old ice plant and that he was not authorized to employ any man as foreman to assume charge or control of the plant. It was also shown that Freeman's duties were general and that he had entire charge and control of the work of dismantling the plant, and was empowered to hire such labor as was necessary and was to use his own judgment in dismantling the plant and taking care of the material preparatory to the erection of the new structure.

It was also shown that neither Freeman nor any of the higher officers of the company knew about the defeat in the railing. Other testimony will be referred to in the opinion.

The jury returned a verdict for $ 14,355.75, and from the judgment rendered appellant has duly prosecuted an appeal to this court.

Judgment affirmed.

A. B. Shafer, for appellant.

1. Under the facts in evidence appellant is not liable, and it should have been so declared as a matter of law. The rule making it the duty of the master to furnish a safe place does not apply where the servant is employed for the express purpose of assisting in the demolition of the plant, to the same degree as it would apply if the plant was being operated for manufacturing purposes. Where the work of the servant necessarily changes the character of the place as the work progresses, the duty of care for the safety of the place rests upon the servant, and he assumes the risks incident to the progress of the work of demolition.

Moreover, in this case, the deceased, being left entirely to pursue his own course and select his own methods in the work, was under the duty to examine the rail for his own protection before subjecting it to an unintended extra-hazardous use. 76 Ark. 69; 79 Ark. 76; 97 Ark. 486; 90 Ark. 387; 69 S.E. 416; 4 Thompson, Negligence, § 3979; White's Supp. § 3979; 3 Labatt, Master & Servant (2 ed.), § 924; 94 S.W. 304; 124 S.W. 608; 54 Ill.App. 578.

2. The court erred in adding to the verdict interest from the date of the death of Howell. Interest should run only from the date of the judgment. 13 Cyc. 83; Id. 86, 87; 17 S.W. 882; 100 S.W. 76; 197 F. 1016.

3. The court erred in modifying and giving as modified instruction 11, requested by appellant. It is a well settled rule in this State that the alleged negligence must be the proximate and efficient cause of the injury. 48 S.W. 898; 133 Id. 816; 113 Id. 647; 115 Id. 396; 96 Id. 152; 110 Id. 1037; 120 Id. 984; 147 Id. 473; 134 Id. 1189; 151 Id. 262. See, also, 155 S.W. 1070, 1078; 77 S. E. (N. C.) 417; 86 A. 292; 51 So. 959; 24 L. E. (U. S.) 256; 53 Id. 671; 26 Cyc. 1092, par. 5; Id. 1097, B-1; 65 F. 48; 105 Ark. 161.

Instruction 7 given by the court is erroneous in that it does not charge the jury that the burden was on appellee to show that the deceased did not know or have reason to believe that Freeman did not have authority to appoint T. Howell as foreman.

4. The verdict is excessive. At the time of his death deceased was earning $ 75 per month. If he contributed one-half to the support of his family other than himself, this would amount to about $ 450 per annum, the present value of which, at 6 per cent, on the basis of his expectancy would amount to about $ 6,000.

J. T. Coston, for appellee.

1. This court will not consider alleged errors in instructions which were not set out as grounds for a new trial in the motion for new trial. 170 S.W. 483; 34 Ark. 423.

Instruction 7 was the only instruction, the giving of which appellant assigned as error in its motion for new trial, and as to that, appellant in effect concedes that it is correct so far as it goes. If it did not go far enough as to the burden of proof, appellant is at fault in not presenting a specific objection, and can not complain. 97 S.W. 287; 56 Ark. 602; 60 Ark. 619; 94 F. 781.

Instruction 11 requested by appellant was properly amended by the court by inserting the words "or was contributed to." 113 Ark. 45; 3 Labatt, Master & Servant, 813; 54 Ark. 299; 67 Ark. 8; 113 S.W. 359; 203 U.S. 473; 90 Ark. 326.

2. It was not a part of the duty of deeeased to dismantle the platform. He lost his life on account of a defect in the railing around the platform, and not on account of any defect in the condensing tower, where he was set to work; and the defect in the platform or railing did not arise in the progress of dismantling the tower. Yet, if he had been engaged in dismantling the platform, it was, nevertheless, the duty of appellant to warn him. 141 A.D. 776; 56 Ark. 213; 114 S.W. 699; 3 Labatt, Master & Servant, § 2475; 158 F. 780; 86 P. 647; 117 P. 753; 82 N.E. 241; 81 P. 478; 88 U.S. 984; 90 N.E. 542; 133 S.W. 1132; 94 S.W. 305.

3. Where the court amends a verdict, and the jury adopts it as its verdict while still in the box,...